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Vincent Carroll

Carroll: Can you believe your eyes?

By Vincent CarrollDenver Post Columnist

Posted:
04/08/2012 01:00:00 AM MDT

"He lies like an eyewitness."

— Old Russian saying

My daughter, a fine scholar and boon companion, is also a fire spinner. She belongs to that small fraternity of performers who twirl balls of fire in beautiful loops or twisting patterns that dazzle against the night.

Sometimes she performs such feats face to face with another spinner. It's a synchronized act that depends on perfect timing lest they end up tangled in chains and wrapped in flames.

Her college troupe's fire show is as impressive as any you're likely to see in a carnival or circus, but the last one I saw gave me unexpected insight into an entirely unrelated subject: the fragile nature of eyewitness testimony.

As the show began late last month, several performers ran toward the audience in order to touch the palm of any willing spectator with the blazing end of a torch. I naturally offered my hand as my daughter approached, was tapped on the palm (you feel a burst of heat, but it doesn't burn), and she moved on to more adventurous stunts.

Except she actually didn't. The torch bearer wasn't my daughter, a fact I learned only the next morning when she reacted with amazement after my wife mentioned the tapping incident. "I didn't touch anyone's hand," she said. "I was backstage, preparing for the next act."

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To say I was rattled by the incident would be an understatement. I pondered it for the rest of the day as my wife and I returned to Denver. Yes, it was dark. Yes, the big fellow on my right may have obscured my view as the performer approached. Yes, she had decorated her face with swirls of tape. And of course my eyes were fixed on the flame as it neared my hand rather than the woman's face a few feet away.

But still ... it's disconcerting. My own daughter! And yet until she set us straight, I would have sworn in court that she had touched my hand with a torch. Nor could I have been convicted of perjury, since I hadn't knowingly told a falsehood.

Prosecutors, defense attorneys and scholars have long known that eyewitness testimony can be problematic. Not only can it be colored by suggestions and prompts but also by people's natural tendency, according to Stanford law professor and former prosecutor George Fisher, to "tailor their stories — and thus their memories — to the interests of the first listeners."

If the first listeners are police, an eyewitness is more apt to recall incriminating details than those that might exonerate a suspect.

As NBC News recently reported, three-quarters of the wrongful convictions exposed by DNA tests over the years relied upon the word of eyewitnesses — testimony that obviously was wrong.

In one of those cases, the victim had taken special care to study her assailant's face while he raped her so she could later put him away. And yet Jennifer Thompson fingered the wrong man. After Ronald Cotton was released 11 years later, Thompson eventually contacted and befriended him, and they even authored a book together. In their case, it appears, the investigatory procedures themselves may have contaminated the victim's memory.

And yet eyewitness testimony is indispensable in convicting many criminals. The system can't function without it. We can tweak police procedures so they don't bias witness responses. We can hope cross examination exposes any holes. But ultimately we're at the mercy of fallible humans.

In my mind, I no longer see my daughter tapping my hand with the torch. It's now someone I don't recognize, someone blurry and receding. Our memories are pliable, it seems, and I've revised mine without conscious effort to fit the known facts. But it was an unnerving way to get to the truth.

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